Representative Karen Bass (D-Calif.) took the stage on the afternoon of September 5 at the Democratic National Convention to deliver a punchy, two-minute speech focused entirely on a legal issue: how the Voting Rights Act was “under attack” across the country.
Bass never mentioned Attorney General Eric Holder Jr. or detailed how the U.S. Department of Justice had filed lawsuits challenging two states attempting to implement Voter ID laws. Her speech was too early in the night to be seen on network television.
With both Republicans and Democrats focused on conveying their message about the economy during the national political conventions during the last two weeks, the Democrats and Republicans offered only brief touches like Bass’ speech to convey how the election could affect a range of important legal issues.
Yet those glimpses — a one-liner from U.S. Senator Chuck Schumer (D-N.Y.), for example, about how Mitt Romney would move the U.S. Supreme Court further to the right than George W. Bush did — reflected stark differences between the two presidential candidates’ approaches to judicial nominees, lobby reform and Justice Department policies.
All seemed to agree: A second Obama administration would almost certainly continue many of the policies from his first term — while Mitt Romney would try to change almost all of them.
Members of the Senate Judiciary Committee said in interviews that some of the biggest differences would come at the DOJ. A Romney Justice Department would reverse many of the Obama administration’s positions in the Civil Rights Division, where the parties differ in their approaches to civil rights enforcement, said Caroline Fredrickson, president of the American Constitution Society.
For his part, Romney accepted the Republican Party nomination in Tampa, Fla., on August 30 with a speech that focused on the economy, his religion, his family, how he started a business and his five-step plan to create more jobs. Absent was even a hint of any DOJ issues, such as the agency’s response to the efforts of several states to change their voter registration laws.
The Republican Party’s platform, adopted during the convention, applauded efforts to require voter IDs — which the GOP says are needed to fight fraud but Democrats say are little more than efforts to disenfranchise large groups of Democratic-leaning voters. The platform also criticized the Obama administration’s handling of immigration and same-sex marriage issues, including DOJ’s refusal to defend the Defense of Marriage Act in court.
Senator Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s ranking minority member, said in a September 5 email that Obama officials “seem to pick and choose the laws they enforce and those they will openly ignore — such as immigration laws where they have undermined Congress, directly ignoring the will of the American people.…It’s a troubling trend that a Romney administration will undoubtedly improve on.”
Romney’s campaign has not so far given an overarching vision regarding what DOJ would prioritize if he were elected, and a spokeswoman responded to requests for comment by saying that Romney “believes every legal vote should count” and that “it was wrong for President Obama to refuse to defend the Defense of Marriage Act in the courts.”
Romney has joined calls for Holder to resign related to the Fast and Furious gun-smuggling operation, and criticized his position on Defense of Marriage. “There’s not very much Eric Holder does that I agree with,” Romney had said during a town hall meeting that CNN aired live in December.
Senator Sheldon Whitehouse (D-R.I.), a Judiciary Committee member and former U.S. attorney, said during a lobbyist party in Charlotte, N.C., on September 4 that a Romney victory would bring “a real danger of reverting to the bad old days” at the DOJ.
“I’ve watched [the Democrats] turn an institution that I’m very fond of and served for several years, the Department of Justice, back around to where it should be again,” Whitehouse said. “There are no more phony-baloney opinions justifying torture; there are no more U.S. attorneys disciplined for not having the right political opinions.”
Although Obama took a one-line shot at lobbyists in his acceptance speech and Romney avoided the topic, the conventions illustrated the different approaches Obama and Romney have taken toward the lobbying and law firms that used the festive atmosphere away from Washington to connect their clients to policymakers and political insiders.
Democrats for the first time declined direct contributions from corporations and lobbyists for their convention, and limited contributions from others to no more than $100,000, according to watchdog group Public Citizen. The Obama administration officially has not been friendly toward lobbyists, tightening lobbying rules and declining to accept campaign donations from them.
Romney’s campaign has taken a different approach. Several lobbyists are working on the campaign and 25 registered lobbyists have raised $3 million in contributions, according to a Public Campaign Action Fund analysis of Federal Election Commission reports.
Both parties threw lavish parties, but fundraising by outside groups occurred on a far smaller scale in Charlotte than in Tampa, said Craig Holman, government affairs lobbyist for Public Citizen who kept tabs on the bashes in both cities.
Neither candidate has made any statements about how lobbyists would be treated under their administration, said Tony Podesta, a lobbyist who runs the Podesta Group. “My guess is that if Obama is re-elected the restrictions will stay the same, and if Romney is elected some of the restrictions might be removed,” he said.
JUDICIAL ROLE MODELS
Judicial nominations, a partisan issue on Capitol Hill but almost never an election issue, drew little attention from convention speakers. The most prominent mention during the Republican National Convention came in a speech by Senator Rand Paul (R-Ky.), but only as part of his criticism of the Supreme Court’s ruling on the Affordable Care Act.
In an interview on the convention floor, though, Senator Orrin Hatch (R-Utah) said Romney would select less consistently liberal nominees to the Supreme Court and federal appellate courts than Obama, and would focus more on judicial scholarship than ideology.
Hatch, a former chairman of the judiciary committee, said he would expect more left-leaning judicial nominees with another Obama administration, while Romney would put forward “some of the greatest legal minds in this country.”
One party in Tampa honored Romney’s advisory committee on the Constitution and the judiciary, which is co-chaired by former conservative judge Robert Bork. Democrats considered that a sign of his commitment to appoint conservative judges in the mold of a man they see as rigidly conservative.
During the Republican primary debates, Romney named the four sitting conservative justices — Chief Justice John Roberts Jr. and Samuel Alito Jr., Clarence Thomas and Antonin Scalia — as his favorites. A spokeswoman said Romney would nominate judges who “exhibit a genuine appreciation for the text, structure and history of our Constitution, will interpret the Constitution and the laws as they are written, and will possess a demonstrated record of adherence to these core principles.”
Democrats made several mentions of Obama’s record on judges during their convention. Cecile Richards, president of Planned Parenthood Federation of America, said on September 5 that “because of President Obama, more women than ever are serving in the cabinet and on the Supreme Court.”
When it comes to judicial nominations, however, which party has control of the Senate will be a big factor in determining what sort of nominees make it through, said Russell Wheeler, a Brookings Institution fellow who has spent decades examining the confirmation process.
A Romney administration could be forced to put forward more moderate candidates if the Democrats retain control of the Senate, and could be faced with some retaliation for what Democrats have decried as unprecedented obstruction of candidates.
“The real question we’re looking at is whether or not this resistance to both district nominees and circuit nominees is the new normal, or whether this has been an aberration during Obama’s first four years,” Wheeler said.
The situation represents a “sea change” from 30 years ago, when the president got to appointment whoever he wanted “unless he had three ears,” Wheeler said. “Now we’re discussing how much static will attach to even noncontroversial nominees.”